The Role of Precedent in Constitutional Adjudication: An Introspection
David L. Shapiro
Harvard Law School
Texas Law Review, Vol. 86, No. 5, 2008
Harvard Public Law Working Paper No. 08-08
Much scholarly interest in recent years has centered on the proper role of precedent in constitutional adjudication, especially in the Supreme Court. This essay seeks to contribute to this lively and important debate, first, by summarizing (and categorizing) the principal approaches to the issue that have been advanced by scholars and judges, second, by explaining and defending my own position, and, finally, by testing that position in the context of an especially difficult problem. In the process, the essay seeks to cast light on some broader questions about the role of theory in the judicial process.
Number of Pages in PDF File: 30
Keywords: Constitutional law, Constitutional adjudication, Precedent, Stare decisis
JEL Classification: K19, K40, K41Accepted Paper Series
Date posted: March 20, 2008 ; Last revised: March 25, 2008
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